SC2643

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 109 OF 2023

BETWEEN:
JOSEPH NOBETAU 
Appellant

AND:
BOUGAINVILLE EXECUTIVE COUNCIL
First Respondent

AND:
AUTONOMOUS BOUGAINVILLE GOVERNMENT
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Logan J, Bona J and Eliakim J
2024: 30th August

ADMINISTRATIVE LAW – DAMAGES – where appellant was found to have been unlawfully terminated under the Bougainville Senior Appointments Act 2014 (the Act) – where the appellant was granted to leave to commence proceedings for damages for the unlawful termination – where the appellant was paid out the remaining salary for the term of his contract – where the primary judge found that there was a statutory cap of 3 months’ salary for any termination payout under s 37(3) of the Act – whether that cap applies to an unlawful termination – appeal allowed, proceedings remitted for assessment of damages 

Facts:

In 2016, the appellant was appointed as chief secretary of the Bougainville Public Service. In 2019, the appellant’s appointment was purportedly terminated under the Bougainville Senior Appointments Act 2014 (the Act).

The appellant was successful in judicial review proceedings concerning the decision to terminate his employment. Following these proceedings, he was granted to leave to commence further proceedings seeking damages for the unlawful termination.

Prior to the National Court’s decision, the respondents paid the balance of the appellant’s salary entitlements under his contract into court. This amount was then paid to the appellant.

The primary judge found that the 3-month notice period prescribed by s 37(3) of the Act acted as a ‘cap’ on the damages for the appellant. In light of this finding and that the appellant had been paid the balance of his salary, the primary judge did not award any further damages to the appellant. The appellant contended that the ‘cap’ was not applicable.

Held:

1.	[The Court]: As the termination was found to be unlawful in the unchallenged National Court proceedings, the termination of the appellant cannot have occurred under s 37 of the Act.
2.	Therefore, the notice period ‘cap’ in s 37(3) has no application to the appellant’s damages claim.
3.	It is inappropriate for the appeal court to try and determine the action for damages. The appropriate course is for the proceedings to be remitted to the National Court.

Legislation Cited
Bougainville Senior Appointments Act 2014

Counsel:
Ms. Salika, for the Appellant
Mr. Nombri, for the First and Second Respondents

Oral decision of the Court as delivered by Logan J on
30th August 2024

1.	BY THE COURT: The appellant, Mr. Joseph Nobetau, was once the chief secretary, and therefore the head, of the Bougainville Civil Service. He took up that office pursuant to an offer made to him by the president of the Autonomous Region of Bougainville, the Honourable Chief Doctor John L. Momis GCL MHR, by a letter dated 5 October 2016. He accepted that appointment, as so offered, on 7 October 2016. He took up the appointment on 17 October 2016.

2.	The appointment was one governed by the Bougainville Senior Appointments Act 2014 (the Act). The appellant’s term of office was governed by s 27 of the Act which provides:

27 Term of office

A senior office-holder holds office for 5 years from the date of appointment, or until the office-holder—
(a) dies; or
(b) resigns under Section 40; or
(c) reaches the age of 65 years, or such other retiring age as may be provided for in a Bougainville law establishing the office;
(d) ceases to be qualified to be a senior office-holder; or
(e) is removed from office under Section 31.
As can be seen from s 27, one basis upon which that five-year term can be brought to an end is by removal from office under s 31.  
3.	Section 31 of the Act provides for a process set out in that Division, Division 3 of Part 5, which can culminate in removal from office pursuant to s 37. Section 37 of the Act provides:

37 Removal from office

(1) The Committee must remove a senior office-holder from office if it receives a recommendation that the office-holder be removed from office, made by—
(a) a board of inquiry, following an investigation conducted under Section 33; or
(b) a tribunal exercising powers under Section 27 of the Organic Law on the Duties and Responsibilities of Leadership of the National Parliament; or
(c) the Bougainville High Court, exercising powers under a Bougainville law made to provide for the matters under Section 173 of the Bougainville Constitution.
(2) The Committee must give written notice of the removal of a senior office-holder to—
(a) the office-holder concerned; and
(b) the Speaker, for presentation to the House of Representatives.
(3) Unless the Committee determines otherwise, on removal from office under this section a senior office-holder is entitled to receive a sum equivalent to 3 months’ salary, in lieu of notice.
4.	Section 28 of the Act provides that subject to any Bougainville law to the contrary, the conditions of employment and the employment of a senior officeholder are as set out in the written offer of appointment. The President’s offer did contain the standard terms and conditions of appointment for the chief secretary and head of the Bougainville Civil Service. 

5.	Those must of course be read subject to the Act and, in any event, are not in relation to termination or term of office inconsistent with the Act. There is no need further to refer to those terms and conditions.  

6.	Whilst considering the Act, it is also pertinent to note that there is provision in s 29 for re-appointment. Section 29 provides for what might be termed a ‘rollover’ of a term of office, but that is subject to a decision which the Bougainville Executive Council may make not to extend a term via that rollover, but rather just bring the term to its natural end.

7.	In 2019, the Bougainville Government purported to terminate Mr. Nobetau’s appointment early. In so doing, the only mechanism open under the Act, and that purportedly followed, was the mechanism that started with s 31 and culminated with a removal under s 37.  

8.	Mr. Nobetau challenged on judicial review the legality of his removal from office. For reasons given on 21 September 2020 in OS (JR) 639 of 2019, the National Court determined that the removal from office of Mr. Nobetau was unlawful.  Read as a whole, the reasons of the National Court are consistent only with the conclusion that the removal under s 37 was not lawful.

9.	The National Court’s order has never been the subject of an appeal. The National Court permitted Mr. Nobetau to institute proceedings for damages; this he did, by a writ issued on 11 May 2021.  In the course of the proceedings, a sum of money representing the balance of the salary which would have been payable to Mr. Nobetau over the course of his five-year term of appointment was paid into court and subsequently paid out of court to him.

10.	The present respondents, who were the defendants below and might conveniently be referred to as the Bougainville and State parties, persuaded a judge in the National Court that Mr. Nobetau had received not just all he was entitled to but more, on the basis that the entitlement he had to damages was kept by s 37(3) at a sum equal to three months’ pay. The reasons for judgment in that regard were delivered orally and entail a construction of s 37(3) to that effect.  There is also reference to Mr. Nobetau having been unjustly enriched by the additional amount paid out of court to him.  
11.	Mr. Nobetau now appeals to this Court against the consequential dismissal of his writ action in which he claims damages.

12.	At the heart of the appeal is a question as to the true construction of s 37(3) of the Act. The case turns on, in particular, what “under this section” means in that subsection. In our view, it necessarily refers to a removal under s 37 and nothing else. 

13.	What inexorably follows from that construction, and the National Court’s conclusion that there was no lawful removal from office of Mr. Nobetau, is that there was no removal of him from his office under s 37 of the Act. That being so, the cap referred to in s 37(3) had no application whatsoever. The learned primary judge was, with respect, in error in concluding otherwise.  

14.	It follows that we reject the submission made on behalf of the Bougainville and State parties that s 37 should be construed so as to make a three-month cap applicable to any award for damages. 

15.	There then comes a question as to what relief should be granted upon the allowing of the appeal. Regard to the claim for relief in Mr. Nobetau’s amended statement of claim discloses at [14] the following claimed damages:

14. Damages and losses
Particulars of Loss and Damage
(a)	General damages for distress, frustration and humiliation in the sum of K 50,000.00.
(b)	Aggravated damages for the untrue, false and misleading reasons relied on by the First and Second Defendants to terminate the Plaintiff resulting in damage to Plaintiff’s reputation, in the sum of K 100,000.00.
(c)	Exemplary damages for the contrived circumstances created and relied on by the Defendants, to unlawfully terminate the Plaintiff’s contract, in the sum of K 50,000.00.
(d)	Loss of future income earnings in the sum of K 4,650,000.00.
(e)	Special damages for legal fees, out of pocket expenses and costs incurred of and incidental as a result of the unlawful termination, in the sum of K 350,000.00.
16.	One course which the appellant promoted in the notice of appeal was the determination by the Court on appeal of damages. It would not be an apt exercise of the appellate jurisdiction to try, as if in original jurisdiction, a damages claim; rather, the appropriate order is to remit the proceedings to the National Court for assessment of damages according to law. 

17.	Upon any such assessment, credit would necessarily have to be given to the Bougainville and State parties for the sum of money already paid out to Mr. Nobetau. Prima facie, the measure of his loss in the circumstances was the monetary sum equivalent to the salary he would have received over the balance of his term of office. He had no assurance, having regard to s 29, of rollover so that the only assured period of office was the balance of his five-year term. The nature of the statutory conditions governing his term of office are such that there was no ability to terminate, for reasons other than misconduct, the appointment early. 

18.	It may well be that a public policy reason informing the legislature for such an assured term of office, subject to the provisions of s 27, was to give a senior officer the security of tenure desirable to give fearless and frank advice to political officers in relation to the conduct of government. In any event, the point is that there was no ability on the part of the Bougainville Government otherwise to terminate early Mr. Nobetau’s term of office. 

19.	So it is that cases which speak of a measure of damages being referrable to the term of notice which could be given for reasons other than misconduct are not applicable.  Instead, as mentioned, the prima facie measure is the balance of the term of office is the monetary equivalent to the salary for the balance of the term of office. 

20.	It does not, however, follow from this that there are no other heads of damage that may be applicable. Mr. Nobetau’s appointment was governed by the Act and the Act does not preclude other heads of damage. It will be for Mr. Nobetau to persuade the Court that he is entitled to some or all of the damages which are set out in [14] of his amended statement of claim. On that, he carries the onus of proof and must introduce evidence to support his claim. 

21.	The fact that that is so, and that contrary evidence may, if the Bougainvillean State parties so choose, be introduced provides a conclusive reason why it is in no way apt for the Court in appellate jurisdiction to embark upon a damages trial.

22.	For these reasons then, the appeal must be allowed.  

Orders

1.)	The appeal be allowed.
2.)	The order of the National Court dismissing the proceedings be set aside.
3.)	The proceedings be remitted to the National Court for the hearing and determination of the appellant’s damages claim according to law.
4.)	The respondents pay the appellant’s costs of and incidental to the appeal, to be taxed if not agreed.
__________________________________________________________________
Palem Onom Lawyers: Lawyers for the Appellant                                     	
Holingu Lawyers: Lawyers for the First and Second Respondents